If you’ve got a cellphone on you, the police can search it during a lawful arrest (including going through saved text messages, phone numbers, etc.), and they don’t need a warrant. So says the California Supreme Court - here’s the full opinion (PDF).
Before discussing this story, here’s some basic background. The 4th Amendment to the constitution protects you from “unreasonable search and seizure” and says that search warrants can only be issued when there’s probable cause to do so. Note that it does not say that the police need a warrant to do a search, nor does it say when a search warrant is required at all. So, over the years, the courts have had to come up with rules to determine when a search is reasonable, and when a warrant is required.
The basic rule is this: any search without a warrant is per se unreasonable – basically unreasonable on its face, meaning that every search must be done with a warrant, unless some exception applies. There are several important exceptions to this rule, but the relevant one here is the “search incident to a lawful arrest.” Basically, this means that if you’re arrested, the police officer can search you, and any containers (bags, purses, cigarette packages, etc.) on you, as well as within your immediate control (sitting next to you in your car, in a glove box, on a table in front of where you were sitting, etc.).
This exception was originally devised to allow the police to search for weapons that the suspect might be able to use against them in resisting arrest, and gradually expanded to cover anything that’s found in the course of such a search, whether it’s a weapon or not, and it doesn’t even require the officer to have probable cause that there might be a weapon in the vicinity, on the grounds that a weapon could be anywhere.
On its face, it seems like search of the digital contents of a cellphone would fall squarely into this category. However, as cellphones become more advanced, and we conduct more and more of our lives online, could we get to the point where a search of a person’s cellphone is no different from a search of their everything?
Think about it: if you’re like most Americans, chances are you’ve got a Facebook profile (or MySpace page if you live 5 or 6 years in the past) which has a lot of personal information, including messages sent between you and people you know. There’s also a good chance you’ve got a web-based email account, which likely contains some very personal messages. And think of all the other online services you can sign up for, which might contain information you don’t want to make available to the world.
If you’ve got a cellphone (especially if it’s a smartphone), chances are you use it to access every online service with which you have an account. And if you’re like many people, you might have your login information saved, for convenience.
So, suppose you’re arrested, and the police decide to search your phone. Are they limited to the data that’s actually stored on the phone, such as stored text messages and phone numbers?
If not, where do you draw the line? The smartphone is increasingly supplanting the role of the personal computer, which is used so often to conduct one’s personal and business affairs that unfettered access to a computer can give you a window into the owner’s entire life. Most people, however, don’t carry a PC around with them every time they leave the house. On the other hand, when was the last time you left your house for any significant period of time without your cellphone?
Given the fact that we conduct so much business in the “cloud” (using data not stored locally), it’s hard to tell just by looking at the screen of a phone or a computer where the data being displayed is actually stored.
And an argument could be made that this is irrelevant, since the location of a piece of data is pretty irrelevant for practical purposes.
It will be very interesting to see how courts wrestle with this issue, because it’s not an easy one. Obviously, there’s no data on a cellphone that could be used as a physical weapon against a police officer, but then again, the search incident to arrest exception doesn’t seem to take that into account.
The dissent notes that this ruling, if it isn’t modified in the future, essentially gives police officers a blank check to access the massive amounts of person and business information that can be found on the average cellphone, just because it happens to be physically present on the suspect’s person. Hopefully, in the future, as it becomes clear that cellphones are basically tiny personal computers, courts will change course on this, and give them the same protection that a computer stored in a person’s home would receive.
By: John Richards